Preventing Crime or
‘Warehousing[1]’ the
Underprivileged? Mandatory Sentencing in the Northern
Territory

By Campbell Thomson

At the age of 17, Damian Wurrkidj lived with a group of neglected boys in
a cave outside Gunbalanya (Oenpelli), Arnhem Land. He sniffed
petrol. He and his
friends broke into the local service station and other places for petrol and
food. The total value of goods obtained
was $273.70. Wurrkidj had no prior
convictions. On 15 October 1998, Magistrate Gillies in the Darwin Magistrates
Court held that
the only sentence that he could impose on all offences was seven
months and 120 days.

Wurrkidj was in custody for 58 days before his appeal was upheld. On 4
December 1998, Justice Priestley found that the Magistrate
had misinterpreted
the mandatory sentencing provisions of the Sentencing Act 1995 (NT)
(‘theAct’). He sentenced Wurrkidj to three months
and 14 days with a mandatory minimum sentence of 42 days. He suspended the
balance
of the sentence and ordered Wurrkidj to continue his Substance Misuse
program.[2] Prior to mandatory
sentencing, given all of these circumstances, Wurrkidj would not have been
imprisoned at all.

Some of the anomalies that perplexed the courts in this and other appeals in
the Northern Territory have been removed by amendments
to the
Act.[3] Other amendments have created
‘exceptional circumstances’ provisions so first offenders may
not face automatic incarceration for property offences. Meanwhile, the Country
Liberal Party Government has extended mandatory sentencing
to cover other types
of sex crimes and violent offences. The national media furore created by the
‘Marlene Towel’ incident
in April
1999[4] has not lessened the
Government’s resolve. On 12 June 1999, Chief Magistrate Bradley sentenced
Kevin Cook, an Aboriginal ‘long-grasser,’
[5] to 12 months jail for stealing a
towel. He said to the prisoner:

Firstly stand up Mr Cook. Mr Cook, you have been to court many times before.
It may be that it is a person such as you the mandatory
sentencing law was
enacted (sic). I notice from your record that there’s 15 previous
dishonesty charges relating to receiving or stealing goods. And it probably
would have been you would have received a severe
sentence in any event (sic).
This constant disregard for the property of others which has resulted in the
Government taking the action
it has with regard to mandatory imprisonment (sic).
In this case the minimum which I am entitled or obliged by law to impose is 12
months imprisonment. Looking at the situation, the facts and the circumstances
surrounding it, I would think that no greater sentence
is appropriate in the
circumstances. So you’re sentenced to 12 months imprisonment.

Jon Tippett QC, President of the Criminal Lawyers Association
NT, observed in relation to His Worship’s comment that‘...it
is a
person such as you the mandatory sentencing law was enacted:

Many would agree. It was enacted to put poor, homeless, drunken Aboriginal
people who commit petty offences against property in prison
for inordinate and
quite unjustified periods of
time.[6]

Competition to be toughest on crime peaks during elections.
Prominent examples are the 1995 election in New South Wales, and the 1992
and
1997 elections in Western Australia. This article seeks to demonstrate to
Attorneys General that mandatory sentencing creates
punishments that do not fit
the crime because it:

Ineffective Deterrent

Attorney-General Dennis Burke introduced mandatory sentencing in the Northern
Territory in order to punish, deter and incapacitate
criminals.[7] Now Chief Minister,
Burke has revised his opinion. Today, denunciation is the aim: ‘[I]t was
not designed to reduce crime,
but to send out a message that property crime
won’t be
tolerated.’[8]

Perhaps he is aware of statistics from Western Australia. They demonstrate
that mandatory sentencing has not had a demonstrable deterrent
effect. In that
State, the Labor Government enacted the Crimes (Serious and Repeat Offenders)
Sentencing Act1992 (WA) (‘the Repeat Offenders Act’)
when facing electoral defeat. The Government was defeated but the next Liberal
Government
introduced ‘three strikes’ burglary laws just before its
re-election in 1997. There was no data to support the ostensible
reasons for the
introduction of these laws.

The Repeat Offenders Act was designed to reduce the number of high-speed
pursuits involving stolen motor vehicles. Figures show that
the number of
vehicles stolen in the following year increased by about
50%.[9]

One analyst of the WA data concludes:

Mandatory penalties do not operate as a general deterrent. They do not work
as a tool for selective incapacitation. They do not promote
‘just
deserts’. They do work to undermine justice, to discriminate against
minority groups and to encourage the subversion
of open and accountable legal
processes.[10]

There is no data for assessing the effects of Mandatory
Sentencing in the Northern Territory. Aboriginal Legal Aid Services have
monitored
cases since the legislation's inception, and are preparing a
statistical analysis prior to taking the issue to the United Nations
Human
Rights Committee. This is the last avenue for legal redress open to them, since
the High Court refused special leave to appeal
from the decision of the Northern
Territory Supreme Court in
Wynbyne.[11] Senator Bob
Brown’s private member’s Federal Bill to override the legislation,
has little bipartisan
support.[12] However, the
current Senate Inquiry dealing with the issue may change
this.[13]

Aboriginal representatives will argue before the Human Rights Committee that
mandatory sentencing (in WA, NT or both?) breaches Article
37(6) of the United
Nations Convention on the Rights of the
Child.[14] Article 37(a)
states:

No child shall be deprived of his or her liberty unlawfully or arbitrarily.
The arrest, detention or imprisonment of a child shall
be...used only as a
measure of last resort and for the shortest appropriate period of time.

In Western Australia, 50 children between the ages of 11 and 17
have served or are serving 12 month mandatory sentences. Most are
released on
supervision after six months. Up to half of those released have breached
supervision and returned to serve the balance
in
detention.[15] It is arguable
that these sentences breach the Convention.

Lawyers from the North Australian Aboriginal Legal Aid Service say that
mandatory sentencing is incarcerating a large percentage of
the late teenage
male populations of remote communities. Joy-riding is common among bored young
males. There are few job opportunities
apart from Community Development
Employment Programmes (work for the dole). A third conviction means 12 months'
jail in Darwin or
Alice Springs, a long way from community and family. This
contradicts recommendations 62 and 92 of the Aboriginal Deaths in Custody
Royal
Commission Report that call for strategies to reduce family separation and
divert offenders from custodial sanction.

Mandatory Sentencing Not Shown to Reduce Crime
Rate

There is doubt about whether ‘warehousing’ these young people
will reduce community crime rates. A 1996 Rand Corporation
cost-benefit analysis
has modeled the effects of California’s three strike laws. It estimates a
28% crime decrease, mostly
in assaults and burglaries, with an increase in the
criminal justice budget of $5.5 billion per annum. In three years the
corrections
budget is forecast to double from 9 to 18% of the State budget. It
is estimated that expenditure on education, health and welfare
will have to fall
by 40% at the same time, given no tax increase. Russell Hogg cites this research
and concludes:

There remains substantial doubt that the criminal justice system can
apprehend, identify and gaol for long periods of time sufficient
numbers of high
rate offenders at the right time in their criminal careers so as to
substantially reduce the crime rate...many who
are caught within the
incapacitative net are likely to be ‘false positives’: offenders for
whom their past criminal record
is a poor guide to their future pattern of
offending.[16]

Concentration of Executive Power

Mandatory sentencing operates to shift the exercise of discretion from the
open scrutiny of the court to the closed offices of police
and prosecutors.
Decisions about whether to charge and what charges to lay directly affect
resulting sentences.[17] In
the Territory, criminal damage and theft of a motor vehicle are property
offences for the purposes of mandatory sentencing while
offensive behaviour and
interfere with a motor vehicle are not. This puts pressure on defendants to
plead guilty to a non-mandatory
offence in order to avoid automatic
incarceration for the alternative mandatory offence. This practice is common in
other jurisdictions
with mandatory sentencing regimes. For instance, in Arizona
in 1990, 24% of felony cases involved inchoate offences such as conspiracy
and
attempt. The explanation for this statistic is that mandatory sentencing applied
only to completed offences. The system was manipulated
by bargaining, resulting
in pleas to inchoate offences to avoid automatic imprisonment. As Morgan
comments, in this situation, ‘...the
negotiating skills of the defence
lawyer count more than the objective circumstances of the
case.’[18]

The author has been involved in cases in the Tiwi Islands and Port Keats in
the Northern Territory where police have withdrawn criminal
damage charges
against alleged offenders if the property owner is reimbursed for alleged damage
and community leaders agree that
the alleged offender deserves another chance.
As a matter of public policy, the decision not to incarcerate should be made in
open
court by a Magistrate. It should not rely on the good will of police
officers or prosecutors who may or may not be sympathetic to
community needs.

America ‘warehouses’ an increasing proportion of its
underprivileged. The rate of crime still increases. The response
is even tougher
sentencing regimes. There is little questioning by the public of the
effectiveness of this policy direction. Australia
seems to lag a decade behind
the United States in social policy change but rates of imprisonment are also
increasing in Australia.
Two jurisdictions have opted for the mandatory
sentencing model. There is pressure for more punitive measures by the courts. As
one
criminologist puts it, a justice system can be converted to a crime control
system as long as its actions do not hurt the
majority.[19] The ineffectiveness,
lack of utility, and resulting injustices of mandatory sentencing should prevent
other Attorneys General from
advocating similar policies.

Meanwhile, in Groote Eylandt, a small island community off the coast of East
Arnhem Land, warrants have been issued for 14 Aboriginal
people on charges which
could see them face 3 or 12 month mandatory prison sentences. That’s a lot
of people to lock up from
a small place.

Campbell Thomson is a Melbourne Barrister who works in the areas of
Criminal, Planning, Native Title and Administrative Law. He worked
with the
North Australian Aboriginal Legal Aid Service in 1997-98.

[1] ‘Warehousing’ is a
criminological term describing how jails can do little more than remove people
from society.